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The U.S. Supreme Court has denied the Montana state Legislature’s request that it take up a high-profile separation of powers case stemming from Republican subpoenas of judicial documents during the 2021 legislative session. 

The case docket on the Supreme Court website was updated Monday to show that the state’s December petition, filed by Montana Attorney General Austin Knudsen, had been denied. There was no accompanying written order. 

State Sen. Greg Hertz, R-Polson, who chairs a special committee that continues to probe the practices of the judicial branch, responded to the court’s denial in a Monday statement.

“We are disappointed by the U.S. Supreme Court’s decision but not surprised given that the court only agrees to hear a tiny fraction of the petitions before them,” Hertz said. “It now falls to the Legislature to ensure that problems within the judicial branch are fixed and that similar situations of deleting public records, lack of transparency, and pre-judging legislation don’t happen again.”

Court Administrator Beth McLaughlin had filed the underlying lawsuit with the Montana Supreme Court in response to legislative subpoenas seeking court records. Her attorney, Randy Cox, said Monday that the court’s decision signaled the legal dispute has come to a close.

“The Montana Legislature has now been told, by every court at every level, that its actions were outside the law,” Cox said. “A state district court, the Montana Supreme Court and now the United States Supreme Court all agree that grabbing potentially private and privileged emails by subpoena rather than seeking them through a normal public records request process was improper.”

Laws on Trial Montana Free Press

The rejection appears to stymie the main legal avenue Montana Republicans had been pursuing in their dispute with the state’s high court. The feud kicked off during last year’s legislative session when Republicans took issue with how lower court judges were polled on bills that would affect the judicial branch. After learning that the judiciary failed to retain comprehensive documentation about the polling, lawmakers proceeded to issue multiple subpoenas for records from Court Administrator McLaughlin, who then filed an emergency petition before the state’s high court. 

Even as the Montana Supreme Court prepared to consider the case, the state agency that oversees state email servers fulfilled Republicans’ expansive subpoena, quickly releasing roughly 2,000 judicial records from McLaughlin’s email account without legal review from the judicial branch. McLaughlin said in legal filings that the released emails could have included a range of sensitive and private information, including information regarding juvenile defendants. 

During months of court filings hashing out the parameters of the Legislature’s subpoena powers, Montana Supreme Court justices also blocked subpoenas issued to them directly, citing the ongoing legal case. The court also denied repeated motions from the attorney general’s office asking all justices to recuse themselves over an alleged conflict of interest. In July, the court found that the Legislature had overstepped its authority and that its subpoenas were overly broad, ordering all documents obtained in the subpoena to be returned. To date, the Legislature has yet to do so.

In December, after the Montana court denied motions to rehear the case, the Legislature and attorney general’s office filed a petition asking the U.S. Supreme Court to take up the case. In part, the request said that the state Legislature had its Fourteenth Amendment due process rights infringed on when the state justices declined to recuse themselves. The Legislature and attorney general pointed to the longstanding legal precedent that “‘no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.’”

McLaughlin’s attorneys fired back in a February responding brief, writing that the Legislature, as a branch of government, “is not a ‘person’ entitled to seek due process protection from this Court, much less wield the Fourteenth Amendment as a political weapon against another branch of government.”

The case was scheduled for a conference deliberation by U.S. Supreme Court justices on Friday, March 18.

As part of his response to the high court’s Monday decision, Cox called on the Legislature to return the documents and records it obtained from its original subpoenas.  Republican majority spokesman Kyle Schmauch said the Legislature “has been in touch with its attorneys about the appropriate next steps regarding compliance with the court’s order.”

McLaughlin also issued a response to the apparent conclusion of litigation over the Legislature’s subpoenas and pursuit of judicial records.

“While existing public record procedures need some improvement and clarification, all government officials are obligated to safeguard the massive amounts of private information residing on the computer systems of state government,” McLaughlin wrote. “The courts have now established that I did exactly what the law required me to do.”

McLaughlin, along with other speakers, will appear before Hertz’s select committee on judicial accountability on Wednesday, April 13, for the group’s first meeting in several months. According to its agenda, the committee plans to hear several hours of panel testimony on public records and records retention. 

This article was updated after publication to include a response on behalf of the Legislature’s Republican majority.

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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.